Ogbuokwelu V Umeanafunkwa (1994)

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ONU, J.S.C. 

This appeal is from the decision of the Court of Appeal sitting in Enugu dated 16th January, 1992 and which upset the judgment of Obiesie,J., sitting at the Anambra State High Court holden in Onitsha and delivered on October 13,1989.

The reliefs sought by the plaintiffs, now respondents against the defendants, herein appellants in the trial Court were:-

(1) N100,000.00 special and general damages for trespass into a piece or parcel of land which the respondents called Abubo Land, the particulars of special damages having been specified and calculated to amount to N11,820.00. It arose from an alleged destruction of economic and seasonal crops by the use of a bull-dozer and a carterpillar by the appellants and

(2) Perpetual injunction.

As both sides in their pleadings (which were ordered, duly filed and exchanged) asserted ownership of the land in dispute which the appellants for their part said went by the name Oheba, title was perforce put in issue.The trial Judge in a considered judgment held that the respondents failed to prove both title and exclusive possession. He therefore dismissed the suit. The respondents’ appeal from that decision to the Court of Appeal having succeeded, wherein an order of retrial was made, the appellants have appealed to this Court upon a Notice of Appeal containing four grounds.

The background facts of the case as presented by both parties in the two lower courts very ably set out by the Court of Appeal sitting in Enugu and upon which I can hardly improve, are as recapitulated briefly hereunder:-

The respondents as representatives of the people of Iruama Village in Unubi Town sued the appellants of Irueze (Urueze) Village in Ekwulumili, though in their individual capacities. However, by the nature of the defence, the appellants appears by and large to represent the alleged eight families which they say own the land in dispute.

The respondents’ case is that the land in dispute (Abubo Land) is in Iruama Village while the appellants who call it Oheba Land say that it is in Urueze Village. It is the respondents’ assertion in paragraph 5 of their Statement of Claim that they share a common boundary on the west with the appellant’s Urueze Village and that this boundary is marked by “Abubo Stream and Njeaba Stream,” and a valley connecting these streams” while “Along that valley are Ukpaka tree, dried Edo tree, Cheleku tree, Ube Okpoko tree and Egbu tree.” The appellants first made some denials but in further answer in paragraph Sea) of their Further Amended Statement of Defence averred that their “Oheba land” now in dispute which forms part of a large portion of their land also called Oheba, is bounded to the North- West by Ubi Ada and Njeaba Streams across which is the land of defendants’ people, to the East by the land of Unubi people, the plaintiffs, to the South by the Uku-Umuojima Stream across which is the land of the plaintiffs and to the West by the other portions of Oheba land but not in dispute.” The two parties would by this seem to have clearly a common boundary between them.

The respondents relied on traditional history which goes thus:

The Unubi Village was founded by a hunter from Akuabuba Village in Ezinifite called Okweagu. That he settled in a farm hut from where he went hunting. That farm hut in their language is called “uno-ubi” and from it the name Unubi received its derivation. That Okweagu had five sons among whom was Nkwukwo, the eldest:Okweagu shared his land among his five sons and the land in dispute formed part of Nkwukwo’s share. Nkwukwo had two sons one of whom was Ezeobosi, the elder of the two. That Nkwukow shared his land between the two sons, and Ezeobosi’s share which became known as Iruama Village encompasses the land in dispute. Ezeobosi had five sons, namely Ezeokana, Ezenobi, Onu, Ezeoha and Ezeanamelu. It is the descendants of these men who form Iruama Village today. Each of the men got a portion of Iruama Village where they inhabited but left some portion as communal land where they farm with the descendants of these families who now inhabit lruama Village. Evidence was led along this traditional history.

The appellants on the other hand, in their pleading, relied on traditional history thus:

Ekwulu, a sheep rearer (or shepherd) and a farmer came from Agukwu Nri in Njikoka in search of green pasture. He settled in a place where there were seven streams and a great pond. He had four sons, among whom was Urueze who was the third in seniority. Ekwulu shared his land among his four sons. Oheba land which they called the land now in dispute formed part of Urueze’s share. Urueze had eight children, namely, Nenugha, Umenwunne, Ezenwabachili, Umealor, Okpe, Umungwu, Ezengu and Amakom.

Urueze shared his land among his eight children each of whom got a share of Oheba land on which they have farmed from time immemorial and in respect of which each sub-family which sprang from each of those children exercised maximum acts of possession.